The Loss of Morality of Job Creation Law
Lawmakers should learn from the Job Creation Law. Moreover, legislation have a broad impact on the life of citizens because they serve to regulate nationhood and statehood.
Didie SW
Constitutional Court Decision No. 91/PUU-VIII/2020 on the formal review of Law No. 11/2020 on Job Creation has opened another side to the formulation of Law No. 11/2020 on Job Creation.
In principle, the decision has found a lack of morality in the process of formulating the Job Creation Law. The Constitutional Court (MK) ruling contains at least three main points.
First, the provision of a legal basis is needed for the legislation that accommodates the creation of an omnibus law. Second, Law No. 11/2020 on Job Creation has two years from the date of the MK decision to make improvements. Third, the MK prohibits the government from issuing derivative rules of the law until it has been improved.
Lawmakers must firmly adhere to the moral aspects of legislation.
The MK seems to have taken the middle path in its decision. On the one hand, it has declared the law’s legislation as unconstitutional, but on the other, it affirms that the law remains valid until it is revised. Despite this, the MK has prohibited the government from creating derivative rules of the Job Creation Law until it has been revised.
The court ruling sends a message to lawmakers that the creation of a law must adhere to the legislative procedure. More than that, lawmakers must firmly adhere to the moral aspects of legislation.
Morality and integrity
Formulating legislation is a manifestation of the authority granted to the House of Representatives (DPR) and the President. This authority is intended as a mechanism to realize public welfare, as mandated in the fourth paragraph of the Preamble to the 1945 Constitution.
However, in the context of the formulation of the Job Creation Law, the MK decision has revealed the absence of morality and integrity. In fact, from the moment the Job Creation Bill was first announced, the public had noted and criticized the process under which it was planned, deliberated and approved by the DPR and the President.
Also read:
> Don’t Ignore Formal Requirements
> Lessons from formal Defect of Job Creation law
Lawmakers demonstrate morality and integrity by observing the whole set of rules that apply to both the legislative procedure and legal norms as per the existing laws. At the same time, the ethical dimensions as envisaged in the principles of good governance also function as a moral benchmark for lawmakers to follow the ethical corridor when formulating legislation.
Ulrich Karpen (2008) in Drafting Legislation: A Modern Approach refers to good criteria of legislation, by which drafting legislation should conform to the levels of legislation, procedural quality, formal quality, substantive quality and the cost of lawmaking.
In the context of the Job Creation Law, procedural quality has raised issue with the process of its drafting. Karpen plainly points out that the procedural quality of drafting legislation is frequently subjected to political pressures that result in a hasty process. At an extreme level, transparency is ignored, making it difficult for citizens and even experts to access the lawmaking process.
The transparency issue correlates strongly with public participation, which is also an important element in formulating legislation. The essence of public participation cannot be simplified through formal-procedural activities, such as by publicizing a bill in a one-way monologue. Public participation is simply a two-way conversation (dialogue) that is held between citizens and the state (DPR, President). The citizen-state dialogue reveals aspirations that the DPR and the President should be transformed into norms through legislation.
Sadly, the representative function of the DPR in the formulation of the Job Creation Law was merely representation by presence. Actually, the representative function of the DPR should also be manifested through public aspirations (representation in idea) as contained in public policy (law).
Also read:
> The Legal Politics of the Omnibus Job Creation
> Job Creation Law and Available Options
That the DPR and the President did not represent public aspirations while deliberating this law was a concrete breach of the morality and integrity in the legislative process. The deliberation of the Job Creation Law appeared to be exclusive and distant from public aspirations. In fact, the essence of the sovereignty of the people as the soul of democracy allows room for voicing public aspirations in a continuous and sustainable way in public spaces.
Instead of making public spaces an arena of dialogue between citizens and the state, the government simply regarded the public’s negative response to the Job Creation Law as the result of provocation by fake news on this law.
Not only that, the government even encouraged citizens to petition for a judicial review of the Job Creation Law at the Constitutional Court if they were unsatisfied with the law. What was needed was actually public space made available as a medium of citizen-state dialogue.
Important lesson
The MK’s ruling on the formal review of Law No. 11/2020 on Job Creation offers an important lesson to the DPR and the President, that they always strictly implement the Constitution and other laws in force.
Legislation that is drafted in a constitutional democracy requires the people’s approval. The people’s approval certainly is not merely accommodated formally through the common approval of the DPR and the President at a DPR plenary session, but in substantially accommodating public aspirations in public policy.
Learning from how the Job Creation Law was formulated, President Joko Widodo, who has appealed for legislative reform on several occasions, should be more concrete in carrying out legislative reform in the second term of his government. The promise to set up a National Legislation Center as a medium for restructuring the legislature in Indonesia has still remained unrealized in his second term.
On the other hand, the DPR, with its legislative authority, should be able to fulfill its role maximally in providing checks and balances to executive power, including in the legislative issue surrounding the Job Creation Law. Furthermore, the government was the one that initiated this law.
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> President: Please Go to the Constitutional Court
> House and Government Convinced
At this point, the DPR should recall as guidance the separation of power that hinges on the spirit of the limitation of power, especially in executing its supervisory function. This spirit was not apparent in the deliberative process for the Job Creation Law.
The MK decision also affects planned draft legislation that adopt the omnibus model, such as the State Capital City Bill listed in the 2021national legislation priority program (Prolegnas). As a consequence, the debate on the bill must be suspended until the legal basis has been prepared for formulating legislation that accommodates the omnibus model.
The DPR and the President should contemplate the MK ruling in a philosophical manner. This is because understanding the MK decision would reveal that the deficit was none other than political morals in the legislative process of the Job Creation Law. The 1945 Constitution and the other relevant, existing laws were overlooked.
The DPR’s lawmaking process should not be understood to be a mere mechanism of decision-making on the basis of the majority vote. Instead, of prime importance is to open public discourse as a manifestation of public participation. The DPR should return to being a space for citizens to give voice to their ideas.
Ferdian Andi
Lawmakers should learn from the Job Creation Law. Moreover, legislation have a broad impact on the life of citizens because they serve to regulate nationhood and statehood. In this context, we should reflect on Edmund Burke’s statement that “bad laws are the worst sort of tyranny”.
Ferdian Andi, Executive Director, Center for Legal and Public Policy Studies; Lecturer of Constitutional Law, Faculty of Sharia and Law, Syarif Hidayatullah State Islamic University-Jakarta
This article was translated by Aris Prawira.
